good evening, this is crist matthews in washington. leading off tonight, is it justice? it's 7:00 p.m. on the east coast and troy davis, a convicted killer, is about to be put to death in georgia, but the words "convicted killer" tell just part of the story. supporters have been gathering all day, about an hour southeast of atlanta. for years now they have insisted that davis is innocent, actually innocent of shooting a killing a savannah georgia police officers 122 years ago. this case has drawn international attention for haveal years. taken back their testimony, recanted, if you will. three of the jurors, by the way, involved in sentencing him to death have asked that he be spared. they have changed their minds.

at least one witness has come forth under oath and said she heard another man who was actually involved in that scene at the time confess to the actual shooting. still, davis does admit to being at the scene of the crime and shell casings were found linking him to a previous crime. so that conviction in 1991, davis has since then exhausted every legal avenue. in fact his execution has been stayed now by various courts. we'll get word soon that davis has been put to death. we'll be live throughout this whole hour. we'll bring you the reaction from around the country, from our reporters as well, from those moth interested in this very dire case. al sharpton and sin think use talker joins us as well. reverend sharpton, it's 7:00.

>> well, i'm at a real loss for words. i'm hoping -- and was hoping all day for a miracle. we had a vigil all day calling for justice here. i remember standing there in 2008 with troy davis out, and the excuse was stayed. i think it's outrageous. i also think that we've got to in his name deal with the fact that i do not think that a capital case should be allowed to go into court only on eyewitness testimony. no matter what your beliefs, there's so much data that says that eyewitness testimony is so flawed it should be outlawed that this can be used in a capital case if there's no

physical or scientific evidence. >> if somebody seeing somebody shoot somebody at point-blank range, you want what other evidence? >> i want some ballistics, i want to have something that proves physically they did not in fact mistake what they said they saw. this case is an example of that. when you have 7 of the 9 witnesses -- you have any number of studies, chris, that say that people think they saw things in questioning they were shown the wrong pictures. there's all kinds of things. if you're talking about a capital case, not a murder case, not a case with life in jail, but a capital case, you should have more than just eyewitness as the basis of prosecuting a capital case, and we're going to washington on that this industry under the circumstances. >> i want to stay with you. we watched a recent example of public attitudes about capital

punishment, not about this case, that may well be already brought to an end with the execution just moments ago, but one of the most shocking moments for nbc news and politico at the reagan library was what we saw from the cheering when rick perry talked about all the people, hundreds w them ford execution papers. let's watch. >> your state has executed 234 death row inmates, more than any other governor in modern times. have you -- have you struggled to sleep at night with the idea that any one of those might have been innocent? >> no, sir, i've never struggled with that at all. >> well, you have a couple points there. i didn't even notice the last tag from the governor, but let's talk about the public reaction. instinctive, enthusiastic applause, representing the fact that in a recent poll, 80% of republicans, 82% are full

supporters of capital punishment. now, democrats are mixed on the issue, a balance slightly in favor, but they struggle with this issue. republicans generally don't struggle with it, they're all for it. in this case it looks like governor perry says he has no sleepless nights. the most recent republican president, george w. bush, and there's not an ad hominem on my part, that he never spent more than 15 minutes in studying in case he had to review. it doesn't seem to bother a texas governor with an execution they have to approve, or at least not stand in the way of. what is it in the hard of republicans that seems to not be in the heart of democrats. i want your analysis, reverend, why a difference of heart here? >> i don't understand the difference of heart. i don't support the death penalty. i don't understand those that do, particularly those that claim to be moral and upstanding in other ways. what is beyond that, and i'm

glad you showed it is, even if you disagree with my stand against the death penalty, what are you cheering about? why are we acting like we're at some coliseum throwing people to the lions and that is civilized behavior? in this particular kay, you have people that agree with the death penalty like bob barr, bill sessions, saying, no, there is reasonable doubt here, this shouldn't happen, and they still are going forward. have we become so insensitive and so bloodthirsty, when brian williams just raised a question, they started cheering? that is frightening in a civilized world to me. >> cynthia tucker has won a pulitzer prize trying to understand us. i argued that no human

enterprise is perfect, to count as a statistician, to count is to err. simply the add of counting your dollars, you'll get it wrong once in a while. people don't do everything right. we execute, i'm convinced over time, over decades, sometimes they make a mistake. the guy or woman, mostly the guy, often an african-american, but almost always a poor person is executed. there must be times when we get it wrong as a society. isn't that a reason -- someone just argued quite legitimately, if we ever gelt it wrong, that is in itself a reason to stop executing people unless we're perfect about it. is that a reasonable standard, that we don't ever make a mistake? >> we clearly make mistakes in the criminal justice system every single day. innocent people are convicted of crimes. people are arrested -- not necessarily prosecuted, but

arrested who didn't commit a crime. the criminal justice system is weighted with the burden of human frailty and prejudices and misunderstandings and misconceptions. there's a good reason that poor people, working-class people are those most often convicted of crimes, those who most often end up on death row. we already tend to believe they are more likely to commit crimes. those are some of the prejudices they carry around. we don't have the resources to hire good lawyers who can wage an appropriate defense for them. all of those are reasons that we ought to be extremely careful about the death penalty. like reverend al, i opposed it, but only if you believe it's appropriate in some cases, i don't know how you cheer about it. it's a duty to be carried out

somberly, and heaven knows texas carts them off -- some mistakes have definitely been made. if we execute troy davis tonight -- and i say we for good reason. these executions are carried out in the public's name, we could well be making another mistake. >> reverend sharpton, i have great respect for your passion. i don't always agree with you, but let me ask you about this case. when you got into this case and sympathized enough to visit with the accused. when you sat down with this fella. i remember "shaw sharon redemption" they say everybody says they're innocent. when he told you he was innocent, what made you believe him? >> what made me believe him was

what happened before we went in. we've been accused of jumping into cases without tag our time, so i did a lot of deliberation and had the general counsel do it before i even went in to see troy. when we saw the recanting of seven witnesses. i went to savannah and had a rally. we talked to people on the jury. you had people on the jury that convicted him that said if they knew the ballistics that they were told that was on some of the shells did not match what they were told were troy, they wouldn't have convicted him. any one of them would have hung the jury. what all of that, to me the matter wasn't just whether he was innocent. the matter was that there was enough reasonable doubt that you do not execute the man. that is why i have passion. the legal precedent that establishes in this case is that on eyewitnesses, no matter how flawed they may be, is a basis of a capital case.

we cannot tolerate that in the 21st century. >> do you believe, reverend sharpton, the fact that it was a cop killing, whoever did the killing was killing a cop, whether it was him or another guy theoretically, in the killing of that police officer was out there moonlighting, trying to make extra money for his family. he's an innocent. this guy is doing his job. he tried to help a homeless guy not get beat to hell, and he gets shot to death. this is a good man, a good person. anyone else in that community would want to root for this guy and feel for a him and care deeply about his loss. i'm asking you, do you think that fact it self-led to a rush to judgment? >> i think it probably created a climate to rush to judgment. i've said from the beginning, when we got involved and i say it tonight, this cop was someone that should be applauded for what he was doing that night. his family should have nothing

but love and sympathy from all of us. they are victims, no question. but the reality is if the work man is being executed, we're making officer mcphail a victim again, because the person that killed him is walking free. you cannot take away from the fact that if, with reasonable doubt, they're executing the wrong man, what are we doing to mcphail all over again? >> well, would you want to execute the other guy if he got convicted, if they get the other guy? >> i wouldn't want to execute him. i would certainly want him -- i don't execute anyone. i forgave the guy that tried to kill me. but if you execute this man, he loses his life, and you make a victim off mcphail again if it is the wrong person, because we still have not done justice to who took the life 6 this officer. >> we don't know except by the clock that this man has probably

already suffered the -- we're going to get the clear word in a couple minutes, but the scheduled call, that's past that time now. he may be past his time. how can you continue your efforts here? it seems worthwhile to our society, if can you demonstrate even with stronger emphasis or more convincingly that this guy didn't do it, he's actually innocent. you get a case like this where somebody who gets executed, who is actually innocent, and you can basically do it, you will have a very, very strong argument against capital punishment with our without physical evidence? >> no, i agree. i said that at the vigil today. i talked to his sisters today when they came out from visiting him. we must walk out of this tonight even if troy is executed, and say that we must prove this was wrong, and we must change the law to where even though the

support the death penalty will have to agree with us that you need in order to establish a capital case step, then troy davis' case will mean something in terms of civilized society. i don't know why people that even support the death penalty, and we'll be in washington meeting with the justice department, why they wouldn't agree that at least there needs to be a bar to have to reach to justify capital case punishment. here we are, thank you very much. we're waiting to get the word on what happened. we expect we'll hear very soon about an execution have been taken place. this is a strange case. this man has so many supporters. really innocent, and these people believe he's really innocent, and this is a miscarriage of justice. we're going to come back and look at this evidence of innocent people, if there are such cases in this country,

maybe this was one we are clearly watching. that's ahead. as we await word from georgia on this execution. planned tonight for 7:00 eastern, the time already passed. you're watching "hardball," only on msnbc. ecutor of efficiency. you can spot an amateur from a mile away... while going shoeless and metal-free in seconds. and you...rent from national. because only national lets you choose any car in the aisle...and go. you can even take a full-size or above, and still pay the mid-size price. now this...will work. [ male announcer ] just like you, business pro. just like you. go national. go like a pro. today i own 165 wendy's restaurants. and i get my financing from ge capital. but i also get stuff that goes way beyond banking. we not only lend people money, we help them save it. [ junior ] ge engineers found ways to cut my energy use. [ cheryl ] more efficient lighting helps junior stay open later...

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look at this scene outside the prison. of course, troy davis was scheduled to be executed at 7:00 p.m. eastern. we're waiting word from the officials at the prison down there to find out what's going on. it's one of the scariest things to think about, the idea that an innocent man could be executed by the state, by society, when he's not guilty. but many death penalty opponents believe it's happened in real life over the years. and that's pretty scary. we have to talk about that. let's go to barry sheck, and bob

barr joining us who's involved in this marine. you were great when we were talking about this. your career is basically about appeals cases. al sharpton, our colleague said we shouldn't be executing people without real scientific evidence, and that eyewitness accounts are simply not reliable. is that too rigorous a standard under common law intuition? can you limb indications to where you have actual evidence, ballistic evidence, dna, that sort of thing? >> the first thing that should be noted, is for the last 20 years we've had an innocent project, and there are 275 people who were convicted, and then real exonerated with dna testing. an eyewitness misidentification was the contributing factor.

there was also junk forensic science, and the same thing happened in this case. we had what everybody agrees is a bad ballistic testimony in this matter. if if you recall during the campaign, i was seeking a stay of an execution from a governor bush for a guy, and on your show, governor bush said i will grand that stay. >> i remember that vaguely. on december 7th, 2000, the last person that jush executed was a man named claude jones. he was sentenced to die after a 3-2 decision where it was said that an accomplice in texas you needed corroborated evidence.

the evidence was analysis of a hair that was found around a countertop. >> barry, we have to -- >> i've got some news. we'll be right back with your analysis. let's go to pete williams, nbc's justice correspondent. what's the word, pete? >> reporter: we are waiting for the u.s. supreme court to say whether or not it's going to grant a stay of execution. the request came just a little over an hour ago. there's no time limit by which it must respond. however, it does appear from what we're hearing from people in georgia, that the state is delaying execution. there's word from our affiliate that one of the lawyers that the state has granted in essence a temporary reprieve do that the state is waiting to see what the u.s. supreme court will do. to make it clear here, as barry

sheck could explain better than i can, the state is in control of the time for the execution. if it wants to delay the execution, it can. that is a matter for the state, not the supreme court. the supreme court doesn't grant repreefs. that's a state issue. the court is either going to grand the stay of execution. that's the only thing pending. a logical question would be how long will that take, and there's no good answer to that. the court is under no time limit here. the justices are aware of the clock issue here, but they have to all be rounded up, and that imsure is going on now. last week, for example, chris, when the supreme court issued a stay of execution in the texas case of dwayne buck, who had been convicted of a double murder in houston and his lawyers were asking for a new sentencing hearing, the court granted the stay two hours after the time for the scheduled execution. the state was waiting in that case in texas.

it did not have to, but it did. so presumably the same thing will happen here. there's no deadline -- there's no time limit until federal law for the supreme court to act, but that appears to be the situation here, where we've got bedownthe scheduled execution time. it appears that the authorities in georgia are waiting to see what the supreme court does. >> how many federal judges -- of the nine supreme court justices, how many have to intervene to act for this to stop? >> it would take a vote of five votes to grand a stay of execution. >> really. >> that's my understanding. i may have to refresh my memory. i think it's four or five, but i think it's five votes. procedurally what's going on, is the lawyers are saying in essen essence, our guy's gotten screwed here, we have an appeal that's coming your way.

while we're waiting for file that appeal, and while you does i to take it, please don't let the state proceed with the execution. it wouldn't make any sense to later say, yeah, we're going to take this case and already have the execution already happened. that's the usual procedure. sometimes the supreme court grants these stays. last week it did, and last week it also denied a stay. there's no way to predict what's going to happen here. this case has been before the supreme court once before, they sent it back to the lower courts, and the justices 345i feel the lower courts have adequately addressed the issues. we just don't know what it's going to do. >> this is what i think the average person hears right now in fact to avoid the execution of an innocent man or the execution of someone who is guilty, depending on your views. how does this guy have enough legal power to operate at all

levels? if he had this kind of legal firepower in his trial, he would have been off, it seems to me. how can they have such great legal help now and he didn't seem to have very good trial support when he was convicted of murder in the first degree and sentenced to death? where did they all come from? and where were they in the first place? >> it's very often the case that the states don't spend a lot of money for people who can't afford their own lawyers and the kind of defense that people get in death penalty cases has been a subject of great concern in the legal community for decades, that there isn't sufficient legal support for people the first time around. you very often happen in a case like this, as more people get interested, lawyers come to the case and find things they think should have been done that weren't done in the first go-around. >> without getting -- i give you

one detail. nine eyewitnesses, now all of a sudden you only have two. does that surprise you? i can understand how a gyre would be teaked by the testimony of nine witnesses, but they have all sort of evaporated. >> and of course the question for the lower courts is, well, okay, what difference does all that make? did he nonetheless get a fair trial? the legal standard's a very high one when you want to reopen a death penalty case. you have to that had the jury known the new facts or new information you have, they very likely would have come for aat standard to meet. there's obviously other evidence, other circumstances that it's hard for the court to

go back and look at. >> i guess it's the arguments that we non-lawyers don't get, that when you appeal a case you're not looking at a view of the guilt or innocence, but whether he had a fair trial. if it looks like a fair trial, you're stuck with it, right? that's the limits of our system. >> exactly. >> okay. thanks, pete. we'll be watching with you. thanks so much. we'll be back to you, probably. bob barr was a longtime conservative republican congressman who i don't believe you have a theoretically objection to execution, right? >> i think that properly applied and with proper safeguards, it is an appropriate punishment. >> what do you think of this case? >> in this case, i don't think it's present to carry out the execution, because there has been very substantial evidence of innocent that has been raised in this case.

i don't think that it is morally or legally correct for the state of georgia to execute a man against whom there is very substantial evidence of innocent. >> how did nine people come to make convincing testimony against this fellow we're looking at at different ages, troy davis a all that seems to now be under the bright lights of the appellate system evaporated. what happened? how can it be so convincing on trial day, so convincing to a jury, and now it doesn't seem to even exist anymore, this evidence? >> this is evidence and witnesses have recanted, that has been brought to the attention of a very, very large number of people, a lot of judges have looked at it, a tremendous number of lawyers, really from all across the political spectrum, chris, have

looked at this, and have proceeded a much more thoughtful analysis of the legal standard and the evidence available than might have been available or that was available during the trial itself many years ago. >> what do you think about capital punishment? at the look like they've had a hard life, they're not exactly appealing people. they may have a rap sheet. what is it it's basically reserved for the down and out is that what it's for, sort of the resid vis, a longlong criminal user time that the junior

doesn't feel any simply for? >> as a program matter, that is partially correct. >> a great of what goes into a jury's deliberations on a death penalty case is very, very emotional. whether or not they feel any sort of sympathy or there's anything redeeming about that defense, that is indeed a lot of what goes on. >> and in this case there were two people involved, allegations always going into the trial, two people were beating up a homeless guy, an off-duty police officers, very compelling, working an extra shift as a night watchman comes upon the situation, he could have avoided, yet he intervened, he's shot dead doing the best thing a citizen or police officer can do. tremendous sympathy, as there should be, i mean personally i feel it.

they wanted to get somebody for it. so they bring this guy to trial, and i wonder whether the jury had that problem executing the guy with nine witnesses? nine witnesses, the guy is there, he's one of the two people, and then he has a gun that was apparently used in a crime earlier that night, the shell casings match, conviction. then all these year later we go back and look at the case and say, well, the evidence has evaporated. this is a hard one. >> it is a hard one. i've seen nothing that would lead me to believe this was an improper prosecution. i don't think there was anything wrong done by the prosecution. he proceeded in good faith through the norm at course of trial down there. there was some evidence in a case, but as barry indicated earlier, the primarily

overwhelming evidence in this case was eyewitness testimony. not only is eyewitness testimony among the most unreliable of testimony, but in the circumstances of this case, it really does race substantial questions, and when you couple that with the vast majority of the witnesses, not just one or two, but the vast majority of witnesses have recanted. certainly in my mind and the minds of other that have joined in this effort raises a sufficient sequel to implore the board of pardoning and paroles to stop the execution or at least have the courts stop it. >> hold on, congressman. this whole idea of recanting, it's a very sort of miss evil term, recanting. sounds like something to do with

the church, like turning candles upside down. i mean, you're actually something kid that guy, i saw him shoot that police officers, that's an amazingly -- seven of the nine people took it back. i said is, i meant it, i was wrong. how often does that happen? seven people out of nine? >> that many recantations, it does not happen, as congressman barr pointed out, the fact that initially the highwitnesses didn't have a good opportunity to others, but what is -- police took them back to the scene, they said where were you all, and they said no, you were here, here, and they all talked

together. two weeks ago we won the landmark decision on new standards one of the things the court talked about, and it's true across the country, one of the last things you would ever do is bring all the witnesses together to talk about what they saw. that is a total no-no. in addition to that, the police -- again, another no-no. so, you know, we know a lot more now about how to at least minimize eyewitness misidentification, the single greatest cause of -- and we're getting cooperation of the police. i can tell you that police officials in georgia that we work with, who are instituting some of these eyewitness reforming tried to make their views known about this case, and their do you understand about

it. he also communicated to the board of pa rolls and pardon here, that he had a lot of trouble with this case. you know, the saved gan are not working. to finish that story that i was telling you, we can now prove, we have a dna test, in the case of claude jones that shows that the evidence does not support of conviction of this guy. the tragedy of it is that president bush on december 7th, 2000, was not even told by his legal staff that this guy, jones' lawyers had been seeking the dna test. we finally found it through a press lawsuit years later. this issue is not going to die, chris, because it's coming up in the campaign. there's very substantial evidence that governor rick perry in 2004 excused todd willingham, notwithstanding the fact that he had an expert

report beforehand that i can't believe he ever seriously examined, or certainly did not have any other expert look at that should have at least led him to stay that execute. and we have definitive proof perjured himself. cameron todd willingham's carrying has been examined. something that he's going to have to explain in this campaign. >> let's go back to this case. you have intrigued me there, but let me go to this case. how -- i understand they were at a hamburger joint, it was late at night, they were all inside looking out the window, just imagine looking out the window into the dark.

how do you see something like that happen? did they all come out and watch it? how close were these nine witnesses? >> they were from varying different distances. as you have accurately been saying all day, seven of them recanted and were subject to suggestive procedures. the eighth is the guy that everybody said committed the crime, certainly the defense's theory, but the ninth witness, right? he was almost like 110, 120 feet away, and i can show you scientific analyses that even that far away, you did hot see the features on somebody's face. >> i continued it outstanding. it was it is mid sell of the night, right? you're sitting in a blurringer joint before you go home, something happens a good distance away, you see three men, two involved in the beating up, and another guy comes along,

and think all happen to be watching at the scene at the time. i just wonder about that. that's the kind of thing we're trying to figure out all these years later. barry, as always, great to have you on. i always wonder how quickly these texas governors review the case and whether it makes sense that anybody of average legal competent -- no, he was not an attorney. i'm trying to figure out these cases like opening up a jacket, and all the stuff is not even in there. >> chris, you read david grand's award-winning piece "trial by fire" in "the new yorker" twoiers and review the ed in the willingham case, and i assure you, this will be a major issue in this presidential explain, because there's substantial evidence that governor perry executed somebody that was innocent, and even worse still, when there was a follow-up investigation by the texas forensic science commission, he

removed the commissioners and attempted to cover up what happened. >> we'll have you back for that. everybody, suspend your judgment about that. you've been intriguing, let's figure it out as we hear balanced views. barry, thank for you coming on, and bob barr, great to have on. lawrence brewer has been executed for the dragging death 6 an african-american man james byrd 13 years ago. he was chained to the back of a pickup truck, in one of the most grisly crimes. we'll be right back with a report from the scene in jackson, georgia. you're watching "hardball," only on msnbc. [ male announcer ] in blind taste tests, even ragu users chose prego.

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let's go to tan trong, thank you. tell us what's happening right now. >> reporter: we just saw the sunset over is the crowd, and there's a large massive crowd. and it's actually right across from a struck stop. there are lots -- lining highway 36, on the order side, on the side of the prison, there are dozens, probably close to 100 riot police. on there is a delay in this execution, as you know. we've been trying to get updays. we spoke with a spokeswoman a while ago. they're waiting. she assumes, to hear some type of word from the u.s. supreme court whether this execution moves ahead or is delayed for the fourth time in so many years.

there's been sporadic cheers, then moments of silence. a lot of people are waiting for any type of word. so many people are supporting troy davis, hoping in execution doesn't move fwrard, but inside, three of the surviving members of the officer that was murdered in 1989, whom troy davis was convicted for that murder, they're inside hoping to witness this execution, and they say this is their justice. they say they're not thirsty for blood, but thirsty for injures. for 22 years they safe they've been living with this. they understand there are some doubts, but they don't believe those doubts are credible. they believe he killed hundreds

and hundreds of protesters are waiting. >> thank you for the great report tonight. how do you possibly -- i guess it's a tough charge. how do you put together what we've been hearing all night, some people convinced of the guilt of this convicted man, troy davis, and how the witnesses have recanted. how can both points of view be credible? >> reporter: that's hard to discern. the point of view from the family and also from the original prosecutor in chatham county, the district attorney, he says, look, this has gone through the process. these same witnesses who have drawn so much focus and many of

them, part of the fraternal police organization, and also the mcphail family saying, look, this is outside the court system. why are we to believe these witnesses now when they're not under oath and there is no type of legal process, that they have recanted. obviously on the other side, on its face, you have to see it from the -- i guess the public opinion and a lot of people right now are operating in that court of public opinion. they say you really can't take this at face value. understanding the situation and understanding the circumstances that this was late at night, and that now we're relying heavily on the witnesses and the testimony of these witnesses that they have recanted, so you have to take it for what they have said. at this point it's a he said/she said point, so they have made

statements now that they believe that troy davis is innocent. they say they were coerced by police, one man saying he was too young at that time, intimidated by the police. so he told them what they wanted to hear. another witness said he made up the whole confession and made it up on what he saw and heard on tv. obviously they have differ opinions and philosophies on what that justice should not. >> great reporting, thanh trong, thank you very much. let's bring in political analyst gene robinson a columnist for "the washington post." thank you for joining us. we also have michael from radio talk show. thank you, michael. both of you looked at this from different lenses in trying to figure out this case. i wonder if it's about facts at this point, if it's not about

penchant point of view. it seems to me thanh did a great job there. the facts presented at trial. under oath, with a jury watching, the guy was convicted with nine witnesses saying show. all -- it sounds like an easy case to be a jury on, then all these years later, it's like disappearing ink. the pen was wet back then, it happened, he was convicted. >> he was. you know, look, flat-out i think this is an illustration of why the death penalty is wrong. and it took me a while to get to that position, and you have to say it's wrong not just for troy davis, but it's also wrong for the other gentleman who was excused tonight in texas, the guy -- that killed james byrd. >> a famous case. >> a horrific case.

you could argue if there is a case in which a death penalty is justified, that would be a case. >> talk about premedicated. >> but mistakes will be made. there will be uncertainly. i agree with you there is no perfection in human endeavor, and this is an irrevocable punishment. you can't say, oops, when new information comes out. you just can't. it's gone beyond discomfort for me. >> do you think the answer is the old mario cuomo solution. if the juries were convinced that life one of these, you face seven year, on good behavior out in ten, not that kind of thing. and they lost faith in the government basically to do what it promised to do. people wouldn't be so bloodthirsty. the idea of life in prison is so horrible. >> life means life now.

there's no parole in a lot of states. i think most stays now. >> so that's enforced. >> it's enforced, yeah. >> let me go to michael smerconish. you've been through the mamea case. that's a weird case. the guy never said he was innocent. this case, apparently he's said for years he's innocent. it seems like a very different case and a case where it's really open to a thoughtful analysis at this point although i bet a lot of murder cases are. >> you know, chris, i'm glad you referenced my involvement. that case is the highest death penalty case in the world. i've served as pro bono legal counsel for the police officer's widow for literally decades. what i have seen in that case, which i applied to this case, i don't know the underlying facts of the case we're discussing tonight as well as your other guests. the presentation of evidence is manipulated over time the further you get from the trial

date. what i've saeen in the abu jama case is a mischaracterization of what's presented to the jury. i listen with a very skeptical ear. if it's the same way in which there's been a whisper down the lane in the abu jamal case, i'm loathed to buy into the presentation of the facts. i might say one other thing, if i may, you're discussing with eugene not only what transpired in texas and what's taking place in georgia, also the trifecta is what's going on in connecticut as we're having this conversation. i've paid very close attention to the petit case. today there was testimony about this case. a home invasion. cheshire, connecticut, a doctor survives, his wife and daughters are dead. they aired an audio confession from one of the guys who's being tried. the other is being convicted of how happen 11-year-old had to perform oral sex on this dirt bag, tied her to her bed and set

the house on fire and it was a triple homicide. i look at a case like that and i say there are some circumstances that are so egregious where this punishment is appropriate. >> i agree with you completely, michael, as i often do. yes? >> appropriate, absolutely, and i won't argue with smerc. do we do it? to me it's taking that step knowing that over time when you look at all the executions, maybe there are only two mistakes. maybe there are only five mistakes. maybe there are only 15. i also agree with smerc that evidence does degrade over time and there must have been a convincing case against troy davis presented at trial. it's been scrutinized over the years. but how much uncertainty is enough? and i don't know how to answer that question. but i do know that you can't take it back and that's my problem with this punishment.

>> you know, the trouble is, one thing i don't think we should try these cases by public opinion, whether it's the duke lacrosse team or that guy from the imf, the french guy. the public opinion, the way the press covers these cases, no way to decide guilt or innocence. it's a hopelessly improper way to do it. we're not doing it tonight but trying to figure out what's happening tonight. thank you, gene and smerconish. when we return, we get an update on the troy davis case. slashing service, and want to lay off over 100,000 workers. the postal service is recording financial losses, but not for reasons you might think. the problem ? a burden no other agency or company bears. a 2006 law that drains 5 billion a year from post-office revenue while the postal service is forced to overpay billions more into federal accounts. congress created this problem, and congress can fix it.

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we're looking at the scene down in georgia right now outside the prison facility where there has been apparently a long delay now, almost an hour, in the execution of troy davis. let's go right now to nbc news justice correspondent pete williams. almost 8:00, pete. almost an hour after the scheduled execution time. >> right. well i think they're doing down in georgia, chris, what we're doing up here which is to see what the u.s. supreme court is going to do. it's been now about two hours since the lawyers for troy davis asked the u.s. supreme court to stop the execution while they prepare to appeal his case for the second time to the u.s. supreme court. so that's what's pending here. a technically known as a request for a stay of execution and we're simply waiting for the u.s. supreme court to decide whether to grant that stay or to deny it. now, in the meantime, the state

of georgia on its own, which is certainly has the authority to do decided in essence to wait to see what the u.s. supreme court was going to do. to be clear about this, chris, the state didn't have to. there's no legal impediment right now that would stop the state of georgia from proceeding with the execution. they have chosen to do this to wait to see what the u.s. supreme court is going to do which is their -- which is their prerogative. now, the big question is how long is it going to take the supreme court to do this? of course, we simply don't know. last week just by way of illustration, the u.s. supreme court granted a stay in a texas death penalty case two hours after the scheduled time for execution. so the state of texas decided to wait as the state of georgia is doing. i would think, you know, as a practical matter we'll hear from the court tonight. i would be stunned if the court waited until tomorrow to respond. they certainly will, i would almost certainly think respond tonight. but when, i just can't say. nobody knows.

>> well, can they acquit -- can they have a retrial? how far can the supreme court go tonight? how much latitude do they have? >> it's a yes or no question. will you grant the stay of execution or not? that's all that's before the court at this point. so they either grant the stay in which case the state can't proceed with the execution, or they'll let it go forward. >> ten seconds. thanks, pete williams. great reporting as always. pete williams, nbc justice correspondent. stay with msnbc throughout tonight tonight as you get further updates throughout the evening on live developments of this case in troy davis in georgia. you're looking at the scene at the prison right now. that's "hardball" for now. thanks for being with us. "the last word with lawrence o'donnell" substituted tonight by martin bashir coming up right now. good evening from new york. lawrence o'donnell is taking a well-earned rest tonight. and we have breaking news out of georgia where state corrections officials dela